Dear Colleagues;
Joining the chorus of those who find this decision poorly reasoned. Even as an Australian looking in to the UK, I find it hard to understand that a comment relying on “the threefold
test adumbrated in Mitchell, Van Colle and Caparo “ [41] could be made these days- what happened to
Robinson?
But let me come back to Andrew T’s first email. I am puzzled as to why there was not a bailment relationship. The Airport Authority accepted the plane into an area which it controlled
access to; the fact that it effectively controlled security to this part of the airport was stressed. Even putting aside the admittedly odd fact that presumably there was a contract of some sort between the Authority and Western Air, surely the Authority was
a bailee of the plane? And in that case the decision should be based on the usual bailment analysis that, where the chattel has been stolen, the bailee will be liable for its loss unless it can show that it exercised reasonable care to look after it. The NSW
decision in The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400, [2006] NSWCA 22 provides a textbook example of a conversion analysis in a similar situation (luxury car stolen from car year because keys were left unguarded in the middle
of the night, car year owner liable.) So the outcome in this case would have been the same (the bailee Authority would not have been able to discharge their onus of showing all reasonable care taken), without casting the law of negligence into disarray.
I suspect an Australian court would have referred very quickly, if this were framed here as a negligence claim, to the main Australian authority holding no duty of care of an occupier
to prevent crimes by third parties, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.
Regards
Neil
NEIL FOSTER
Associate Professor, Newcastle Law School
Acting Program Convener, LLB(Hons)
Faculty of Business and Law
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From:
Robert Stevens <robert.stevens@law.ox.ac.uk>
Date: Wednesday, 11 November 2020 at 6:49 am
To: Donal Nolan <donal.nolan@law.ox.ac.uk>, Matthew Hoyle <MHoyle@oeclaw.co.uk>, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>, Philippa Ryan <Philippa.Ryan@anu.edu.au>, obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Stealing aeroplanes
As Donal says, it reads like it was decided around 1994. It is hard to blame Lord Kerr. He clearly thinks he was right in Michael, doesn't accept the majority's reasoning in that case, and so carries
on as if nothing has happened. So, back comes Caparo v Dickman from the dead, the distinction between drowning babies and not picking them up is ignored, and we assume that because the defendant has been careless, and the plaintiff is foreseeably worse off,
that suffices. What next, Anns v Merton rehabilitated?
If you squint a bit, the result is (probably) ok. But the result alone is not the ratio.
I don't think the English Court of Appeal should be bound by Privy Council decisions, and the move to change this by Willers v Joyce is a mistake.
What used to happen was that decisions of the Privy Council that deserved to be obscure were quietly allowed to die, left to gather dust in the basement of the Bodleian in the Dominion Law Reports
(eg Brickenden v London Loan and Savings [1934] 3 DLR 465) or other obscure places (Madras Official Assigneee v Krishnaji Bhat (133) 49 TLR 432 anyone).
Now the internet age preserves these things forever, and we're supposed to take them seriously. Did Lords Wilson, Carnwath, Briggs and Lady Arden realise that Lord Kerr was reasserting his preferred
(and now repeatedly rejected) approach to negligence liability? Or, as I suspect, did they just assume it was a straightforward case and so not worth giving very much consideration?
From: Donal Nolan <donal.nolan@law.ox.ac.uk>
Sent: 10 November 2020 18:54
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Robert Stevens <robert.stevens@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Philippa Ryan <Philippa.Ryan@anu.edu.au>; obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: Stealing aeroplanes
Going back to the judgment itself, it reads like a case from the 1990s or early 2000s. I didn’t expect to see
X v Beds being resurrected in 2020, for example … and how come it was ‘incumbent’ on the Bahamas court to apply the threefold
Caparo test when the UKSC has said more than once in recent years that there is no such thing?
The outcome seems fair enough, and can be explained on an assumption of responsibility basis. But I don’t think much of the reasoning can be reconciled with weightier recent decisions of the HL/UKSC.
All best
Donal
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 10 November 2020 18:45
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Philippa Ryan <Philippa.Ryan@anu.edu.au>; obligations@uwo.ca
Subject: RE: Stealing aeroplanes
For some reason, seemingly an artefact of the common law ‘activity duty’ doctrine, as far I know the courts have never found that wording extends the common duty of care to protecting parties from threats arising from
things happening on what are otherwise per se safe premises (Fairchild [2002] 1 WLR 1052 at [149];
Bottomley v Todmorden [2003] EWCA Civ 1575 at [31]; Portsmouth YAC v Poppleton [2008] EWCA Civ 646 at [7], [17]-[20];
Yates v National Trust [2014] EWHC 222 (QB) at [33].
If the plane had injured someone e.g. it was inadequately supervised while taxiing, you could get around that problem by saying the plane itself was ‘premises’ (s.1(3)(a) and its interpretation in
Wheeler v Copas [1981] 3 All ER 405). But that doesn’t help here because it is the loss of the plane itself which is being complained about. The law is a complete mess.
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender.
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 10 November 2020 18:08
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Philippa Ryan <Philippa.Ryan@anu.edu.au>;
obligations@uwo.ca
Subject: Re: Stealing aeroplanes
Things "omitted to be done" on premises? (section 1).
From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: 10 November 2020 18:05
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Philippa Ryan <Philippa.Ryan@anu.edu.au>;
obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Stealing aeroplanes
Dear Rob,
I largely agree with you re occupiers' liability. But I'm not sure if this case turns, or should turn, on occupation. The complaint wasn't of a danger on the land, but of failure to take steps to keep thieves at arm's length. The real
issue should be whether the airfield took charge of the aircraft, either as bailee or by assuring the owner of the machine that they'd look after it. If the PC had asked the question, answered it in the affirmative and found liability on that basis I'd have
been happy.
I still have one soft spot for Diplock. I think he was the man who opened a House of Lords appeal with the words, "My Lords, my clients have no merits. But they are right."
Best from Prison House 2.0
Andrew
On 10/11/2020 17:52, Robert Stevens wrote:
Would the result be any different in England today?
As Andrew and Andrew say, the important question is whether the Airport Authority, as owners of the airfield, had assumed responsibility towards the owner of the aircraft. They could have just said "Park your aircraft here if you like, but we're not assuming responsibility for it." ie aircraft are left here at the owners own risk.
This was (and still is in rational jurisdictions) the difference between the relationship of invitees and licensees. Invitees were (are) people I invited on to my premises who I assumed responsibility for. Licensees were people I allowed to enter, but to whom I assumed no responsibility.
But in England we foolishly abolished this distinction in 1957, instead opting for an omnibus negligence rule drawing no distinction between invitees (to whom I owe[d] a non-delegable duty that care is taken of them, that further requires me to take positive action to protect them) and licensees (who only have the vanilla Donoghue v Stevenson duty owed to them).
So, would this be a case of "occupiers" liability in England today, where we no longer draw the important distinctions that we ought to? What pointless fun, arguing over whether a defendant is an occupier or not within the Act. A credit to our law.
(One Kenneth Diplock QC served on the Law Reform Committee that led to the mistake that was the 1957 Act and dissented from this change to the law. Whatever became of him?)
Rob
From: Philippa Ryan <Philippa.Ryan@anu.edu.au>
Sent: 10 November 2020 17:32
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Stealing aeroplanes
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